Texas

In order to file for divorce in Texas, certain residency requirements must be met. First, a party must be a domiciliary of the state for the preceding six-month period. A domiciliary of the state means a person that primarily lives in that state.

The second requirement is that a party must be a resident of the county in which the suit is filed for the preceding 90-day period. However, a spouse that does not live in the state may file a case against a spouse that does live in the state, as long as that spouse meets both of the requirements stated above.

Grounds for Divorce in Texas

There are seven grounds for divorce allowed under Texas law.

The first is insupportability. Insupportability means “discord or conflict of personalities” that has prevented any “reasonable expectation of reconciliation.”

Another ground for divorce is living apart. This ground requires that the “spouses have lived apart without cohabitation for at least three years.”

The third ground for divorce is confinement in a mental hospital, and requires that one spouse be confined in a state or private mental hospital for at least three years plus the requirement that “the mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, relapse is probable.”

The next ground is cruelty, which occurs when one spouse treats the other spouse cruelly and living together is insupportable.

Abandonment can also be a reason for divorce, and requires that one spouse has “left the complaining spouse with the intention of abandonment; and remained away for at least one year.”

Conviction of a felony and adultery are the last two grounds. It is important to note that the person alleging grounds for divorce must also prove those grounds. For example, when a spouse suspects adultery that spouse may not be able to prove the adultery occurred.

Property Division, Marital Property and Assets in Texas Divorce

In Texas, marital property can be divided into three basic categories: separate property, community property and mixed property. All property in a marriage is presumed to be community property, which means belonging to the marriage.

However, a party to a divorce can rebut the community property presumption by showing that the property is that individual’s separate property. It is a heavy burden to show that property is separate property, however it can be done with sufficient documentation and evidence.

Texas defines separate property as property “claimed or owned” before the marriage; property acquired by gift, devise or descent; and recovery for personal injuries sustained by a spouse during marriage, excluding any recovery for loss of earning capacity awarded to a spouse during marriage.

Lastly, certain property can be mixed community and separate property when the community estate and the separate estate of one spouse both have an interest in the asset. If the property is determined to be mixed the separate or community estate may have a right to be reimbursed from the other estate.

Along those same lines, debts are also categorized. More specifically, if a debt was incurred during marriage, it is presumed to be a community debt. However, this presumption can be rebutted by showing that a lender agreed to look solely to one spouse’s estate to satisfy the debt.

After determining the character of the assets of debts, the court will divide community property based on what is “just and right.” The “just and right” standard takes into consideration numerous fact-specific factors which are weighed by the court.

Settlement Agreements in Texas Divorce

Texas courts look favorably upon amicable agreements and settlements of domestic disputes. The Texas Family Code provides that parties may enter into a “written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse,” and this agreement can be revised or repudiated before a divorce or annulment is granted unless provided for in another rule or law.

Furthermore, if the court finds that the terms of the agreement are “just and right,” then the terms are binding. If the court finds that the terms are not “just and right,” the court may have the spouses submit another amended agreement or even set the case for a contested hearing.

Spousal Maintenance and Alimony in Texas

Texas provides for spousal maintenance in only two specific circumstances:

  • The spouse from whom maintenance is requested was convicted or received deferred adjudication for family violence within two years from the suit for dissolution of the marriage or while the suit is pending; or
  • If the marriage lasted more than 10 years, the spouse seeking support does not have “sufficient property” to provide for their “minimum reasonable needs,” and if the spouse seeking spousal maintenance either: cannot support themselves and get employment because of an incapacitating physical or mental disability; is the custodian of a child of any age who needs substantial care because of a physical or mental disability making it impossible for that spouse to obtain outside employment; or the spouse does not have the earning ability to provide support for that spouse’s minimum needs.

In determining the “nature, amount duration and manner of periodic payments,” the court will review specific statutory factors. Typically, spousal maintenance is limited to three years; however the Texas Family code does provide some exceptions relating to disability of a spouse or a child.

Furthermore, the court may not order a spouse to pay more than $2,500.00 or 20% of the spouse’s gross monthly income, whichever is less.

Child Custody and Divorce in Texas

In Texas, courts divide “child custody” issues into two different categories: conservatorship and possession and access.

Conservatorship is basically the rights and duties of the parents (i.e. to make decisions for the child regarding schooling, medical decisions, and psychiatric decisions, among many other things).

Conservatorship can be done in different ways, including allowing one parent to make all the decisions (Sole Managing Conservatorship) or allowing both parents to jointly make the decisions (Joint Managing Conservatorship). When determining the rights and duties of the parent(s), the court will decide what is in the “best interest” of the child, which takes into account a large number of factors.

Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules, standard and extended standard. These schedules dictate the time each parent spends with the child.

However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

Child Support in Texas Divorce

Texas law provides that the duty by either or both parents to support a child continues until one of several events occur.

Child support generally ends when the child is 18 or graduates from high school, whichever comes first, or may end when the child is emancipated or the child dies. If a child is disabled, the court may order child support for an indefinite period.

There is a presumption that the amount of child support is computed as a percentage of the paying party, known as the obligor’s monthly net resources based on the number of children for which support is obligated. This is known as “guideline support.”

The basic calculation for guideline support begins at 20% of the obligor’s net resources for one child, increasing by 5% for each child until six children, at which point the amount is not less than the amount for five children. A party can ask for more than guideline support by showing that it is in the best interest of the child to deviate from those guidelines. It is also important to note that there is a maximum amount of child support that the court can order.

Temporary Orders During a Texas Divorce

Legal Separation is not recognized in Texas. However, upon filing of a divorce or other family matter, a party may request the court enter a temporary order during the course of the case.

Temporary orders allow the parties to get agreed upon or court-ordered “rules” governing various aspects of the domestic arena, including child conservatorship, possession and access, child support, property division, spousal support and various other items.

Paternity as it Relates to Texas Divorce

In Texas there are several ways in which paternity may be established. Paternity is generally established by: i) presumption of paternity; ii) voluntary acknowledgment of paternity,  or iii) adjudication of paternity.

The Texas Family Code provides numerous situations in which paternity is presumed. For example if the man is married to the mother of the child when the child is born during the marriage, he would be the presumed father. A presumption of paternity can be rebutted either by filing a suit to adjudicate parentage or filing a valid denial of paternity along with an acknowledgement of paternity by another person with the bureau of vital statistics. However, it is extremely important to note that a statute of limitations to contest paternity may apply to a paternity dispute. This statute of limitations acts as a deadline to challenge paternity and this deadline occurs on the fourth birthday of the child.

Paternity can also be voluntarily acknowledged, if the acknowledgement meets the statutory requirements including among other factors, being in a record signed by the mother and man seeking to establish paternity. Lastly, paternity can be adjudicated by having a party bring a Suit to Adjudicate Parentage.

The law in Texas with respect to domestic litigation is complicated and the court system can be difficult to maneuver. This article is only a brief review of some of the laws in Texas relating to family issues and is not meant as a substitute for the advice of counsel. It is important to consult an attorney in each case before taking any action.

Jenkins, Joan Foote and Wilhite, Randall B., O’Connors Texas Family Law Handbook, 120 (2010).